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DE L’EUROPE OF EUROPE
JUDGMENT
STRASBOURG
24 October 2002
PROCEDURE
1. The case originated in an application (no. 37703/97) against the
Italian Republic lodged with the European Commission of Human Rights
(“the Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the Convention”)
by an Italian national, Mr Raffaele Mastromatteo (“the applicant”), on
11 December 1996.
2. The applicant, who had been granted legal aid, was represented before
the Court by Mr B. Nascimbene, a lawyer practising in Milan. The Italian
Government (“the Government”) were represented by their Agent,
Mr U. Leanza, Head of the Diplomatic Legal Service at the Ministry of
Foreign Affairs, assisted by Mr V. Esposito, co-Agent, and Mr F. Crisafulli,
deputy co-Agent.
2 MASTROMATTEO v. ITALY JUDGMENT
3. The applicant alleged that the Italian authorities were responsible for
his son's death because he had been murdered by prisoners who had been
granted prison leave and had taken advantage of it to abscond.
4. The application was transmitted to the Court on 1 November 1998,
when Protocol No. 11 to the Convention came into force (Article 5 § 2 of
Protocol No. 11).
5. The application was allocated to the Second Section of the Court
(Rule 52 § 1 of the Rules of Court). On 14 September 2000 it was declared
admissible by a Chamber of that Section, constituted as provided in Rule
26 § 1.
6. On 22 November 2001 the Chamber relinquished jurisdiction in
favour of the Grand Chamber, neither of the parties having objected to
relinquishment (Article 30 of the Convention and Rule 72).
7. The composition of the Grand Chamber was determined according to
the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.
8. The applicant and the Government each filed written observations on
the merits of the case.
9. A hearing took place in public in the Human Rights Building,
Strasbourg, on 13 March 2002 (Rule 59 § 2).
The Court heard the addresses of these representatives and their replies to
questions put by the judges. After the hearing the parties submitted
supplementary information relating to those questions.
MASTROMATTEO v. ITALY JUDGMENT 3
THE FACTS
10. The applicant was born in 1933 and lives in Cinisello Balsamo
(Milan).
1. M.R.
14. M.R., who fired the fatal shot, was serving a prison sentence of
fifteen years and seven months for attempted murder, armed robbery and
other offences. He was due to be released on 2 July 1999 and was serving
his prison sentence in Alessandria. When it convicted M.R. on
25 March 1987, the Milan Assize Court of Appeal had considered him to be
a danger to society.
15. In a decision of 26 October 1989 the Alessandrian judge responsible
for the execution of sentences granted M.R. prison leave from 10.45 a.m. on
1 November 1989 to 10.45 a.m. on 3 November 1989 with the condition
that he remain at his home in Monza (near Milan).
It was the first time that M.R. had been granted prison leave. The case
file shows that the judge responsible for the execution of sentences relied on
4 MASTROMATTEO v. ITALY JUDGMENT
the reports by the prison authorities concerned stating that they were
satisfied with M.R.'s behaviour, rehabilitation and willingness to reintegrate.
16. The decision granting prison leave was communicated to the
appropriate police authorities.
The information provided by Monza Police Station shows that M.R. had
reported to the police station at 3.15 p.m. on 1 November 1989. In a note
drawn up on 6 March 2000 the police station stated that at the time no
anomaly had been recorded during M.R.'s prison leave.
17. On the expiry of M.R.'s prison leave on 3 November, he failed to
return to Alessandria Prison and could not be found.
On the same day Alessandria Prison informed Monza Police Station that
M.R. had not returned and that he should therefore be considered to have
absconded.
A “wanted” notice was drawn up and circulated throughout the country
by means of the police national computer system. The notice has not been
kept in the police files.
2. G.M.
18. G.M. was serving a six-year prison sentence imposed on
16 December 1986 for aiding and abetting armed robbery and other
offences.
19. Since 21 October 1988 he had been subject to a semi-custodial
regime, which is an alternative measure to imprisonment, pursuant to a
decision of the Venice court responsible for the execution of sentences.
G.M. worked in Milan and returned to the city prison in the evenings.
20. In granting him that alternative regime to imprisonment, the court
had relied on the reports by the prison authorities stating that G.M. had been
of good behaviour and showed a willingness to reintegrate and that nothing
untoward had occurred during his previous periods of prison leave.
Furthermore, on 28 June 1988 the Milan Police had given a favourable
opinion of the work which G.M. would be undertaking.
21. The following obligations were attached to the semi-custodial
regime:
(a) leave the prison after 5 a.m. (subsequently 4 a.m.) and return by
11 p.m. at the latest;
(b) not quit the authorised job without giving notice;
(c) not spend money without permission;
(d) use public transport;
(e) avoid excessive consumption of alcohol; and
(f) spend bank holidays with his family and remain in the Milan area.
22. That decision was sent, inter alia, to the Social Services Department
of Milan, which was the authority responsible for implementing supervisory
measures. That authority carried out one inspection, at the prisoner's home
and his place of work, during the period of approximately twelve months
MASTROMATTEO v. ITALY JUDGMENT 5
which elapsed between the date on which the semi-custodial measure was
granted and the date on which G.M. absconded.
23. No supervisory measure was envisaged by the police authorities.
24. G.M.'s criminal record shows that on 26 October 1989, which was a
few days before the applicant's son was murdered, he had committed a
handling offence. He was convicted of that offence in 1991 in a judgment
which became final on 18 March 1992.
3. A.C.
25. A.C. was serving a prison sentence for armed robbery committed
jointly with M.R. His criminal record shows that he had a previous
conviction for murder. He was in prison in Alessandria.
26. In a decision of 23 August 1989 the Alessandrian judge responsible
for the execution of sentences granted him prison leave from 19 to
26 September 1989. The judge responsible for the execution of sentences,
relying on the reports by the prison authorities concerned, had been satisfied
with A.C.'s behaviour in prison. The report prepared by the prison workers
responsible for monitoring A.C. had stressed his good behaviour during his
previous periods of prison leave.
27. While on prison leave A.C. was subject to a number of constraints:
he had to report to the police station daily; stay at home from 10 p.m. to
8 a.m.; and not leave the district of Sesto San Giovanni (Milan).
The decision granting him prison leave was communicated to the
appropriate police authorities. The file shows that A.C. reported to the
police station daily to sign the register.
28. On 26 September 1989, when his prison leave expired, A.C. did not
return to the prison and was deemed to have absconded. On the same day
Alessandria Prison informed Monza Police Station that A.C. had not
returned and that he should therefore be considered to have absconded.
A “wanted” notice was drawn up and circulated to the various police
forces throughout the country.
4. G.B.
29. G.B., the fourth accomplice, was not in prison at the material time.
His criminal record shows a number of convictions for armed robbery and
other offences.
31. Of the three prisoners, only M.R. and G.M. were convicted of the
murder of the applicant's son, aided and abetted by G.B., and given long
sentences.
32. The third prisoner, A.C., who was to have been the driver, was
convicted only of armed bank robbery.
33. The applicant lodged an application to join the criminal proceedings
against the offenders as a civil party. The defendants were ordered to pay
the civil parties damages in an amount to be determined by the civil courts;
the criminal courts awarded the applicant 50,000,000 Italian lira (ITL),
however, as a down payment to be made immediately.
34. The applicant did not state whether the down payment of
ITL 50,000,000 had been paid to him or whether, failing payment, he had
taken steps to attempt to obtain the money.
35. In any event the applicant has not sued the criminals for damages in
the civil courts. He submitted that they would not in any case have been
solvent.
36. On 6 November 1992 the applicant lodged a claim with the Ministry
of Justice and the Ministry of the Interior for compensation under
Act no. 302 of 1990, which provides for compensation for victims of
terrorism and mafia-type criminal organisations.
In support of his claim, the applicant alleged that his son had been
murdered by criminals who were serving prison sentences and that they
were members of a “gang” whose criminal activities fell into the category of
organised crime.
37. The applicant stated that the Minister for Justice had advised him, at
a meeting, not to bring legal proceedings against the State.
38. On 6 October 1994 the committee responsible for examining the
applicant's claim ordered a further inquiry with a view to establishing
whether or not the criminals responsible for the death of the applicant's son
could be deemed to be members of a “criminal organisation”, which would
have rendered applicable the statutory provisions on which the applicant
relied.
The committee attached some weight to a report drawn up by the Prefect
(Prefetto) of Milan stating that the bank robbery which had culminated in
the murder of the applicant's son was not an isolated episode, but the
workings of a criminal organisation operating in the area.
39. However, on 21 April 1995, on the basis of the results of the further
inquiry, the above-mentioned committee ruled out the possibility that A.
Mastromatteo's murder could be deemed to be the workings of a criminal
organisation.
MASTROMATTEO v. ITALY JUDGMENT 7
44. Act no. 663 of 10 October 1986 (known as the “Gozzini Act” after
its sponsor) modified the Prison Act (Act no. 354 of 26 July 1975) in order
to facilitate the return to the community of convicted prisoners.
45. Section 30ter (8) of the Prison Act provides that a prisoner may be
granted prison leave on condition that he has behaved well in prison and is
not a danger to society. According to the seriousness of the offences, the
prisoner must have served an unsuspended period of his sentence before he
or she can be deemed eligible for prison leave.
It is left to the judge responsible for the execution of sentences, who
must consult the prison authorities, to determine whether or not the prisoner
is a danger to society.
46. According to a circular of the Ministry of Justice dated 9 July 1990
on the application of the Gozzini Act, which reproduced two notes of
29 December 1986 and 30 May 1988, a measure facilitating reintegration
could not be granted merely because no disciplinary penalties had been
imposed; it also had to be established that the prisoner was genuinely
willing to participate in the reintegration and rehabilitation programme.
Furthermore, the assessment of whether the prisoner was a danger to society
had to be based not only on the information provided by the prison workers,
but also on the information available from the police where the judge, in his
discretion, deemed such clarification necessary.
47. Legislative Decree no. 306 of 8 June 1992, which became
Act no. 356 of 7 August 1992, introduced more stringent conditions in
respect of offences committed by a criminal organisation.
The statute in question has ruled out, inter alia, the possibility of
granting prison leave or other alternative measures to imprisonment where
particularly serious offences (for example, mafia-type association) are
concerned, unless the prisoner co-operates with the judicial authorities.
8 MASTROMATTEO v. ITALY JUDGMENT
50. Act no. 117 of 1988 governs civil proceedings against judges.
Section 2(3)(d) of that statute provides that proceedings can be brought
against a judge if he or she has – intentionally or by an act of gross
negligence – taken an inappropriate measure in the exercise of his or her
duties.
51. Article 2043 of the Civil Code sets forth the principle of neminem
laedere, which is a general duty not to harm others. Anyone who alleges
MASTROMATTEO v. ITALY JUDGMENT 9
that he has sustained damage in breach of that principle may bring an action
for damages.
52. Act no. 302 of 1990 makes provision for state compensation for
victims of terrorism and mafia-type criminal associations.
THE LAW
the responsibility of the State under the Convention; it must be shown that
the death of A. Mastromatteo resulted from a failure on the part of the
national authorities to “do all that could reasonably be expected of them to
avoid a real and immediate risk to life of which they had or ought to have
had knowledge” (Osman, cited above, para. 116), the relevant risk in the
present case being a risk to life for members of the public at large rather
than for one or more identified individuals.
75. In that connection the Court notes that the Alessandrian judge
responsible for the execution of sentences took his decision with regard to
M.R. on the basis of the reports by the prison authorities, which were
satisfied with M.R.'s behaviour, his rehabilitation and his willingness to
reintegrate (see paragraph 15 above).
In the case of G.M., the Venice court responsible for the execution of
sentences relied on the reports by the prison authorities, which had been
satisfied with the prisoner's behaviour and rehabilitation, on the success of
the previous periods of prison leave and on the police's approval of the
professional activity G.M. would be undertaking (see paragraph 20 above).
76. The Court considers that there was nothing in the material before the
national authorities to alert them to the fact that the release of M.R. or G.M.
would pose a real and immediate threat to life, still less that it would lead to
the tragic death of A. Mastromatteo as a result of the chance sequence of
events which occurred in the present case. Nor was there anything to alert
them to the need to take additional measures to ensure that, once released,
the two did not represent a danger to society.
Admittedly, M.R. was granted prison leave after his former accomplice,
A.C., had taken advantage of the prison leave granted by the same judge to
abscond. However, this fact alone cannot in the view of the Court suffice to
establish a special need for caution when deciding to release M.R., in the
absence of material showing that the authorities should reasonably have
foreseen that the two would conspire together to carry out a crime which
would result in the loss of life.
77. In these circumstances the Court does not find it established that the
prison leave granted to M.R and G.M. gave rise to any failure on the part of
the judicial authorities to protect A. Mastromatteo's right to life.
78. With regard to the allegedly negligent conduct of the police, the
evidence shows that M.R. was subject to the type of supervision normally
envisaged when prison leave is granted (see paragraph 16 above).
After M.R., and moreover A.C., had absconded, “wanted” notices were
circulated according to the method generally used in such cases
(see paragraph 17 above).
Even supposing that the authorities could have taken more effective
measures to find the fugitives, the Court does not see any reason to hold
them liable for any breach of the duty of care required by Article 2 of the
Convention.
MASTROMATTEO v. ITALY JUDGMENT 15
79. In the light of these considerations, the Court considers that there has
not been a violation of Article 2 of the Convention under this head.
88. The Court considers that the applicant complained essentially about
not having received compensation from the State for the death of his son,
who had been the victim of a violent crime.
Since the applicant has not based his complaint on Article 13 of the
Convention, the Court will examine it from the standpoint of the procedural
obligations under Article 2.
2. Holds, by sixteen votes to one, that there has not been a violation of
Article 2 of the Convention with regard to the procedural guarantees.
18 MASTROMATTEO v. ITALY JUDGMENT
Luzius WILDHABER
President
Paul MAHONEY
Registrar
L.W.
P.J.M.
MASTROMATTEO v. ITALY JUDGMENT 19